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Misconduct is a potential fair reason for dismissal but only if you also follow a fair and correct procedure.

The employee must know the nature of the action/s for which he/she is being disciplined and the seriousness of any possible sanction.

In Boyd v Renfrewshire Council an employee was summarily dismissed for “deliberately and wilfully” taking an unauthorised break which “resulted in service disruption”. Mr Boyd was sent a letter inviting him to a disciplinary hearing but there was no mention in the letter of his conduct being perceived as “deliberate and wilful” or that its effect was to cause a “service disruption”. Nor did it mention that dismissal was a possible sanction.

The tribunal held that Mr Boyd had been unfairly dismissed as the letter inviting him to the disciplinary hearing did not reflect the reasons given in the dismissal letter. Mr Boyd was unable to appreciate how seriously the Council viewed his misconduct and therefore did not know to put forward a full defence in mitigation.

TIP: Set out in the disciplinary hearing invitation letter the basis upon which you are taking disciplinary action.

TIP: State the possible sanction to give the employee an indication of the seriousness of the misconduct.

TIP: What happens where you have sent an invitation letter and further misconduct then comes to your attention which you would also like to include in the disciplinary action? Our advice is that you do not spring the further allegations on the employee in the meeting as in doing so you will be breaching the rules. Instead, write to the employee and delay the disciplinary meeting and add in the further matters you would like to be dealt with. If the newly discovered issues are more serious in nature than the original complaints then you will need to consider revising the possible outcome section of your invitation letter.

If you have any queries about any of the matters raised in this article or any other employment law issue please contact David Greenhalgh at H2O Law LLP on 020 7405 4700.